NO. 07-07-0145-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D APRIL 20, 2007

______________________________ IN RE DON ALD WAYNE SMITH, Relator

_______________________________ Opinion on Original Proceeding for Writ of Mandamus

_______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Pending be fore this court is the appli cation of Donald Wayne Smith for a writ of mandamus. He reques ts that we order “Ed ward Self , . . .Dist rict Judg e of Hale County Texas” to “dispose of [Smith’s] litigation prom ptly, efficiently, and fairly.” According to his application, Smith has filed w ith the trial court, “a moti on for nunc pro tunc” on November 14, 2006. We deny the applicati on for the reasons which foll ow. First, rules of procedure obligate one seeking mandamus reliefto accompany his petition with an app endi x. T EX
. R. A PP
. P. 52.3(j). The latter must i nclude, among oth er things, a certified or

sworn copy of the document showing the matter complained of . In this case, the document showi ng the matter complained of woul d be the “motion for nunc pro tunc.” This he failed to do. Also lac king is compliance w ith other aspec ts of the same rule.1 Fil ing something with the district c lerk doe s no t m ean the trial co urt k now s of it. No r is t ha t cle rk ’s

knowledge im pute d to the trial cou rt. In r e Chavez , 62 S. W .3d 225, 228 (Tex. App. –Am ari ll o 20 01 , or ig. proceed ing). Th us, S m ith m ust p rove that the trial cou rt rece ived n otice o f the p lead ing. Id. Merely all eging that s om ething was filed with o r m ailed to the d istrict cler k d oes not s atisfy tha t requ irem ent. Id. 2 For instance , his application contains no identity of the parties and couns el, tab le of contents, index of

authorities, statement of the case, or statement of the i ssues presented

. Rule 52.3 requires

one seeking ex

traordinary

relief, such a s a wri t of mandamus, to incl ude those matters in hi s peti tio n. And, that Sm ith may be acting pro se does not relieve him of complying with the rules of procedur e. Holt v. F.F. Enters. , 990 S.W.2d 756, 759 (Tex. App.–Amarillo 1998, p et. denied). Second, nothing of record indicates that the motion purportedly fil ed belo w w as brought to the attention ofthe dist rict cou rt. Simply put, before mandamus rel ief may issue, the petitioner must establish that t he dis tric t cour t 1) ha d a leg al duty

to per form a non-discretionary act, 2) was asked t o perfor m the act, and 3) fai led or refused to do it. O’Connor

v. First Court of Appeals , 8 37 S.W.2d 94, 97 (Tex. 1992); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Am arillo 2001, orig. proceeding). Given this, it is encumbent upon Smith to illustrate that the district court received and was aware of his motion. 1 This is so because a court

cannot be faulted for doing nothing w hen it is or was unaware of the need to act. Here, the record simplyindicates tha t Smith’s motio n was filed with the “ 242 nd DistrictCourt.” Wh ether the trial court was ever made aware of it is unknown . Lacking that information, we cannot s imply ass ume that the distric t court knew of its duty to act and neglected to perform it. Thus , Smith ha s not fulfille d his burden to illustrate that the tria l court refused to a ct.3

Third, and assuming arguendothat a pleading is brought to the attent ion of a district court, the latter has

a duty to consider and act upon it. In re Bates , 65 S.W.3d 133, 134-35 (Tex. App.–Amarillo2001, orig. proceeding) ; In re Ramire z , 994 S. W .2d 6 82, 6 83 (T ex. App.–San Anton io 1998, orig. proceeding). This is so because the task of co nsidering it is ministerial

. In re Bates , 65 S.W.3d at 134-35; Safety-Kleen Corp. v. Garcia , 945 S.W.2d 268, 269 (Tex. App. –San Antonio 1997, orig. proceed ing), quoting O’Donni ley v. Golden , 860 S.W.2d 267, 269-70 (Tex. App.–Ty ler 1993, orig. proceeding). However, the court has
a reasonable ti me within w hich to act. In re Bates, 65 S.W.3d at 135. And, whether t hat period lapsed is depen dent upon the cir cumstances of each ca se. Id. In other w ords, no bright li ne demarcates the boundaries of a reasonable time period. Id . Many indicia are influential, not the least of w hich are the trial court’ s actual know ledge of the m otion, its overtrefusa l to act on s ame, the state of the cou rt’s docket , and the exi stence of other judicial and administrative matters which must be addressed firs t. Id. So too must the trial court’s inherent power to con trol its own do cket be incl uded in the mix

. In re Bates , 65 S.W.3d at 135; see Ho v. Univ ersity of T

exas at Arli

ngton, 984 S.W.2d 672, 694-695 (Tex. App.–Amarillo 1998, pet. denied) (holdin g that a court has the inherent authority

to control its own docket). Since that power is discretion ary, Hogget t v. Br own , 971 S.W.2d 472, 495 (Tex. App.–Houston [14th Dist.] 1997, pet. denied), we must be war y of interferi ng wit h its exercise without l egitimate bas is. And, si nce the party requesting mandamus relief hasthe burden to provide us with a reco rd sufficient to establ ish his ri ght to same, Walker v. Packer , 827 S.W.2d 833, 837 (Tex. 1992); In re Bates, 65 S.W.3d at 135, Smith had the4

obligation to provi de us with a record establ ishing that a properly

filed motion hasawaited disposition for an unreasonable length of time. He has not done that

. The record before us merely illustra tes that Smith purportedly fil ed his motion w ith the 242 nd District Courton November 14, 2006. Yet, no other evidence purporting to touch upon the indicia discussed in the precedi ng paragr aph appears of recor

d. And, because
we do not hold that the district court’s failure to act upon a motion abou t which it ma y have
no knowledg e constitutes unreasonable dela y per se , Smith again has not satisfied his burden of proof. Acco rdin gly, th e a pplication for writ of mandam us pending before this court is denied.

Brian Quinn Chi ef Justice